PEOPLE v. SMITH, et al.

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PEOPLE

v.

SMITH, et al.

April 13, 1999
No. 208869
LC No. 97-090004
Recorders Court

PEOPLE OF THE CITY OF DETROIT,

Plaintiff-Appellant,

v.

ARLENE SMITH and MARKETTA GREEN,

Defendant-Appellees.

Before: Hoekstra, P.J., and Doctoroff and
OConnell
HOEKSTRA, P.J.

Defendants in this case were charged with
violating a city ordinance prohibiting anyone from interfering
with a city workers performance of his duty. Specifically,
they attempted to prevent a police officer from arresting their
relative. We granted leave for plaintiff to appeal a
Recorders Court order reversing defendants district
court convictions and granting defendants a new trial. We
reverse.

On July 11, 1996, a Detroit police officer,
working as a community relations officer, was patrolling a
shopping center. According to the officer, he was in a clothing
store when Lavada Smith entered the store and, in a loud voice,
began using profanity. Because she ignored his requests to stop
using such language, he attempted to arrest her as she was
leaving the store. The officer claimed that Lavadas cousin,
defendant Marketta Green, and grandmother, defendant Arlene
Smith, tried to prevent him from arresting her by striking him
and pulling her away. He also claims that they tore off his name
plate and badge and took his radio. Arelene Bates Smith, another
of Arlene Smiths granddaughters, also joined the fray.

Lavada was charged with disorderly conduct. The
three women who tried to prevent her arrest were charged with
violating a city ordinance that prohibits interference with, or
obstruction of, a city employees performance of his duty.
All of the defendants pleaded not guilty and requested jury
instructions on self-defense and defense of others and the right
to resist an unlawful arrest. The trial court initially reserved
ruling on the issue until it was briefed and the defense met its
burden of production concerning self-defense, but it ultimately
denied the requests.

The jury found Lavada not guilty of disorderly
conduct, but found the other three women guilty of interfering
with a city employee. The trial court assessed fines and costs of
$100 for each conviction. Two of the defendants, the appellees
herein, appealed their conviction to the Recorders Court.
That court ruled that the trial court erred when it refused to
give jury instructions regarding self-defense, defense of others,
and the right to resist an unlawful arrest, and it remanded the
case for a new trial. Plaintiff appeals the Recorders Court
ruling, arguing that the trial court was correct when it refused
to instruct the jury on those defenses.

It is well settled in Michigan that "one
may use such reasonable force as is necessary to prevent an
illegal attachment and to resist an illegal arrest . . . ." People
v Krum, 374 Mich 356, 361; 132 NW2d 69 (1965). The right to
resist an unlawful arrest is, in essence, a defense to the charge
of resisting arrest, because the legality of the arrest is an
element of the charged offense. People v Rice, 192 Mich
App 240, 243; 481 NW2d 10 (1991). However, in this case, none of
the defendants were charged with resisting arrest.
Therefore, instruction on the right to resist an unlawful arrest,
whether only for Lavada or for all the defendants, would have
been improper. Id. at 243-244.

The Recorders Court also ordered the
trial court to instruct the jury on the defendants right to
self-defense and defense of others. In essence, defendants argued
that the police officer assaulted Lavada, and they simply came to
her aid. However, this argument is nothing more than a
reassertion of the right to resist a third-persons unlawful
arrest. A claim of self-defense or defense of others first
requires that a defendant has acted in response to an assault.
The assault alleged in this case is the officers arrest of
Lavada. An arrest can be an assault if the arrest is illegal. People
v Eisenberg, 72 Mich App 106, 111; 249 NW2d 313 (1976).
Fundamentally, the Recorders Court held that defendants had
the right to assist Lavada in resisting her arrest if that arrest
was illegal.

While Michigan remains part of a shrinking
minority of states who retain an arrestees right to resist
an illegal arrest, we decline to extend that right to third-party
intervenors. Other courts and legislatures have found the right
to resist an unlawful arrest to be outmoded in our contemporary
society. For example, in State v Valentine, 132 Wash 2d 1;
935 P2d 1294 (1997), the Washington Supreme Court examined the
common law right to resist unlawful arrest and concluded that the
right arose at a time when mere imprisonment often resulted in
death or serious physical harm. Id. at 14-16. However,
under modern law governing criminal procedures, arrestees enjoy
the right to reasonable bail, the right to counsel at critical
stages of the trial, and the right to a prompt judicial
determination of probable cause. State v Thomas, 262 NW2d
607, 611 (Iowa 1978). Since 1966 the number of states permitting
resistance to an unlawful arrest has declined from 45 to 20. Valentine,supra at 17-18. In those states where the common law rule
has been overturned by judicial decision, courts have
regularly voiced concern that allowing this kind of
"outmoded common law rule . . . fosters unnecessary violence
in the name of an obsolete self-help concept . . . ." Thomas,
supra at 611.

Given its waning support in other
jurisdictions, and in light of the considerable protections
intended to guarantee the expeditious processing and humane
treatment of those arrested, we can find no basis for escalating
the potential harms already inherent in an arrest situation by
extending the precarious right to use force against government
officials to third-party intervenors. Nor will we extend that
protection to allow defendants to plead defense of others where
the charges take the form of "interfering with a city
worker," as opposed to resisting arrest. To hold that one
can argue defense of others when charged with interfering with a
city workers performance of his duty — where the employee
is a police officer, and the duty takes the form of an arrest —
would be to elevate form over substance.

We reverse the order of the Recorders
Court and reinstate both defendants convictions and
defendant Greens sentence. However, defendant Smith died
during the pendency of these appeals. Accordingly, the assessment
of costs against her should stand, but the purely penal aspect of
her sentence should be abated ab initio because it no longer
serves a purpose. See People v Peters, 449 Mich 515, 517;
537 NW2d 160 (1995).

Reversed. We remand for modification of
defendant Arlene Smiths judgment of sentence as indicated.
We do not retain jurisdiction.